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[2018] ZANCHC 72
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Letselebe and Others v Bowles and Others (311/2017) [2018] ZANCHC 72 (28 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 311/2017
Date
heard: 18-06-2018
Date
delivered: 28-09-2018
In
the matter between:
KR
Letselebe 1st
Applicant
Congregational
Council of the Evangelical
Church
in Southern Africa
Cape
Orange Diocese – St Martin
Parish 2nd
Applicant
Members
of the Congregation of
The
Evangelical Church in Southern
Africa
Cape Orange Diocese – St Martin
Parish 3rd
Applicant
And
Bishop
WR
Bowles 1st
Respondent
Reverend
MZ
Manong 2nd
Respondent
MW
Jongole 3rd
Respondent
Reverend
AT
Khunou 4th
Respondent
Diocesan
Council of the Evangelical
Church
in South Africa Cape Orange
Diocese 5th
Respondent
CORAM:
OLIVIER ADJP ET WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
This
application was first launched as a matter of urgency on 8 February
2017 for relief under Part A of the Notice of Motion that:
“
2. A Rule Nisi
be issued calling on the Respondents to show cause on 24 February
2017 why the following order should not be granted
as a final order
of Court:
2.1 That the
Respondents and/or any person acting under their instruction or
authority be interdicted prohibited and/or restrained
from enforcing
the purported cross transfer and secondment of the Reverend Khumalo
to either the South Eastern diocese of the Evangelical
Lutheran
Church in South Africa or to the KwaZulu – Natal Christian
Council.
2.2 That the
Respondents and/or any other person acting on its instruction or
authority be interdicted, and/or restrained from enforcing
any
purported decisions of the Fifth Respondent regarding Reverend
Khumalo before the finalisation of this application;
2.3 That Reverend
Khumalo be reinstated with immediate effect on his full salary
pending the finalisation of Part B of this motion:
2.4 That Paragraphs
2.1 and 2.2 serve as a temporary interdict with immediate effect.
2.5 The application
and annexures together with the rule nisi and the court order be
served on the Respondents;
3
Granting
the Applicants further or alternative relief;
4. Ordering that the
costs in respect of Part A of the Notice of Motion be determined at
the hearing of Part B of the Notice of
Motion.
2.
Part B of
the Notice of Motion, which was to be heard on a date to be arranged
with the Registrar called for the following relief:
“
7 Reviewing and
setting aside the decisions taken by the Fifth Respondent to cross
transfer Reverend Khumalo to the South Eastern
Diocese of the
Evangelical Lutheran Church in Southern Africa as a pastor in
Bethlehem or his secondment to the KwaZulu –
Natal Christian
Council.
8. Granting the
Applicants further or alternative relief.
9. Ordering those
Respondents that oppose this application to pay the costs of this
application jointly and severally.”
3.
The
application became opposed, with opposing papers filed on 28 March
2017. In the meantime Reverend N Khumalo filed an application
to intervene and be joined as the 4
th
applicant in the application. This application for joinder was
withdrawn on 4 April 2017.
4.
On 19 April
2017, Reverend Khumalo again lodged an application to be joined as
the 4
th
applicant in the application.
5.
After a
number of postponements, the applicants withdrew Part A of the Notice
of Motion against the respondents.
6.
This matter
served before us on the basis that the application to intervene be
dealt with first and that, thereafter, and if necessary,
the review
application be set down for hearing on some future date.
7.
At this
stage it is convenient to give a brief background of the events
leading up to this application and which are not in dispute.
7.1 During 2016 Rev
Khumalo, who was the pastor of the St Martin Parish (Kimberley) of
the Evangelical Lutheran Church in Southern
Africa, Cape Orange
Diocese (the ELCSA-COD), expressed his wish to be transferred to a
parish closer to his family home in Kwazulu-Natal.
After
informal discussions with the Umgeni and Shiyane circuits of the
Church which fall under the Evangelical Lutheran Church
in Southern
Africa, South Eastern Diocese (ELCSA – SED), Rev Khumalo on 3
November 2016, wrote a letter to the 1
st
and 3
rd
respondents (respectively the Bishop and leader of the ELCSA-COD and
the Chairperson of the Diocesan Council of the ELCSA-COD)
asking them
to grant him the opportunity to transfer should a vacancy be secured.
7.2 On 15 November 2016,
the secretary of the ELCSA-SED addressed a letter to Rev Khumalo
informing him that the Diocesan Council
of the ELCSA – SED had
resolved on 8-9 November 2016 that he be transferred to the Bethlehem
Parish. Bethlehem falls
within the diocese of the ELCSA-SED and
is apparently about 120 km away from Rev Khumalo’s hometown of
Escourt in Kwazulu-Natal.
7.3 On 16-17 November
2016 the Diocesan Council of the ELCSA – COD met and resolved
to grant Rev Khumalo’s request for
a transfer to the ELCSA-SED,
effective from 31 December 2016.
7.4
Rev Khumalo
was not happy with a transfer to Bethlehem and on 30 November 2016
addressed a letter to the 5
th
respondent, the Diocesan Council of the ELCSA-COD, advising that his
request was for a cross transfer to the parishes of Umgeni
or Shiyane
and that it at least be considered that he be placed within the
province of Kwazulu-Natal.
7.5 On 13 December 2016
Rev Khumalo addressed a letter to the 5
th
respondent withdrawing his request for a transfer.
7.6 On 6 February 2017
Rev Khumalo approached the 5
th
respondent, informing the members of a written job offer he had
received from the Kwazulu-Natal Christian Council as a Child and
Youth Development Coordinator with effect from 4 February 2017 for a
3 year contract period. He requested the 5
th
respondent to second him to the Kwazulu-Natal Christian Council.
The 5
th
respondent acceded to this request and confirmed the secondment of
Rev Khumalo to the Kwazulu-Natal Christian Council in a letter
errounesly dated 6 January 2017 instead of 6 February 2017.
7.7 However on 9 February
2017 the 5
th
respondent addressed a letter to the Rev Khumalo withdrawing the
secondment since “
after
deliberations with the South Eastern Diocese it has come to our
attention that we (ELCSA –COD) do not have the constitutional
mandate to have granted you the secondment.”
8.
Rev Khumalo
states in the application to intervene that he was not a party to the
proceedings when the main application was instituted,
since he was in
Kwazulu-Natal. He had however since been advised that, as he
had a direct and substantial interest in the
matter, he should be
joined as an applicant. He furthermore makes the allegation
that since he was seconded by the 5
th
respondent on 6 February 2017 (regardless apparently of the
withdrawal of the secondment on 9 February 2017), he was still in the
employ of the ELCA-COD and was therefore entitled to reinstatement
pending the finalisation of the review application. It
is
interesting to note that the 1
st
applicant, who deposed to the replying affidavit in the main
application, refers to Rev Khumalo’s entitlement to
reinstatement
only after the expiration of his contract in
Kwazulu-Natal.
9.
The
respondent’s opposition to the joinder of Rev Khumalo as an
applicant is two-fold. Firstly, that the applicants
in the main
application have no
locus
standi
to
bring the application and that Rev Khumalo’s joinder as an
applicant would not be able to resurrect an application which
is
fatally defective. Secondly, that Rev Khumalo’s joinder
as an applicant will in any event be of no consequence,
since the
review application would still remain fatally flawed due to the
non-joinder of necessary parties and Rev Khumalo’s
failure to
first exhaust his internal remedies.
10.
Mr Eillert,
who appeared for the applicants, conceded in his heads of argument
and before us that the provisions of the Constitution
and By-laws of
the ELCSA do not afford the current applicants a legal interest in
the relief sought in the main application.
The Congregational
Council the 2
nd
applicant, of which the 1
st
applicant is the chairperson and 3
rd
applicant, the congregation of the St Martin parish have, in terms of
the Bye-laws to the Constitution of the ELCSA, no authority
to refer
any matter to a higher body or Council of the Church except through
the channel of the Parish Council (Part 1, 1.3 of
the By-Laws).
The argument is however that the joinder of Rev Khumalo, who has a
direct and substantial interest in the application
and therefore
clearly has
locus
standi
,
would cure the defect and would be able to advance the application to
the conclusion thereof, should leave to intervene be granted.
11.
Whether or
not the joinder of Rev Khumalo is permissible to cure the lack of
locus
standi
of the 1
st
to 3
rd
applicants is certainly arguable. The notion was entertained in
Kinekor
Films (PTY) Ltd vs Drive-In Home Movies 1976(2) SA 87 (OPD)
,
where the applicant claimed in the alternative that should it fail on
grounds of lack of
locus
standi
,
that leave be granted to join certain parties which would have
locus
standi
.
The court there found that such a procedure would result in the
matter being dealt with piecemeal with resultant additional
expense
and inconvenience to the respondent and that a party who is of the
opinion that he has a claim and wishes the joinder of
himself as an
applicant must apply therefor at the earliest opportunity so that the
court could hear the matter as a whole.
That application of
joinder was accordingly refused.
12.
I
fortunately do not have to make a pronouncement on whether a party
can be joined to cure a lack of
locus
standi
,
since the fate of the application for joinder can be decided on the
other issues raised by the respondents.
13.
In
Ex
parte Moosa: In re Hassim v Harrop – Allin 1974(4) SA 412 (T),
the
court held at p 414B thereof, that in an application for leave to
intervene the intervening party must show that he has a legal
interest and that his legal interest could be prejudicially affected
by the judgment of the court, that it was not necessary for
such a
party to satisfy the court that he will necessarily succeed in the
litigation and that it was sufficient for him to make
such
allegations as would show that he has a
prima
facie
case
and that his application is made seriously and is not frivolous.
14.
There is no
doubt that Rev Khumalo has a legal interest in the subject-matter and
outcome of the main application. The core
issues to be
determined, however, are whether he has made out a
prima
facie
case
and whether he is serious about the application.
15.
Ms Erasmus
for the respondents was at pains to point out that the actions and
attitude of Rev Khumalo were at odds with a person
seriously desiring
to enforce his rights. Not only was the initial application to
intervene as an applicant withdrawn without
any explanation and
thereafter pursued again, but the fact that Rev Khumalo failed to
pursue the internal remedies provided for
in the Constitution of the
ELCSA and
opted
instead to take up employment with the
Kwazulu-Natal
Christian Council under a 3 year contract itself speaks volumes.
It also explains why the 1
st
to 3
rd
applicants withdrew Part A of the Notice of Motion which called for
the immediate re-instatement of Rev Khumalo.
16.
Whilst Mr
Eillert is correct in contending that under the common law, as
in
casu
,
an applicant need not exhaust his internal remedies before seeking
relief in a court of law, this proposition is not completely
unqualified. It was held in
Welkom
Village Management Board v Leteno
1958 (1) SA 490
(AD) at 503, that domestic remedies need not be
exhausted in circumstances where the aggrieved person’s very
complaint is
founded on the illegality or fundamental irregularity of
the decision being challenged.
17.
This brings
me to the nature of the complaint as set out in the founding
affidavit to the main application and as confirmed by Rev
Khumalo in
his affidavit in the joinder application. In short the
applicants contend that, since the Constitution of the
ELCSA, Chapter
5 of the Part X, clause 5.9, provides that the
Church
Council
“
shall
be responsible for the assignment and cross transfers of ordained
servants to the Dioceses in Consultation with the Diocesan
Councils.”,
the
5
th
respondent, the Diocesan Council of the ELCSA-COD, did not have the
authority to cross transfer Rev Khumalo. Consequently
it is
contended that the decision taken by the 5
th
respondent is ultra vires and void ab initio and should be set
aside. The same it is contended holds for the decision taken
by
the ELCSA-SED. While the anomaly of the situation where the
very person who pleaded with both the ELCSA - SED and the
ELCSA COD
to accommodate him with a transfer to the SED should a vacancy arise,
now claims that such a decision by either institution
would be
ultra
vires
and
void ab
initio
is
not lost on me, the involvement of the Church Council in the decision
has in my view not been shown to be excluded. In
fact the
record of decision supplied by the respondents in the review
application include the minutes of a Church Council meeting
held on
28-31 May 2017 wherein it is recorded that ELCSA-SED had informed the
Church Council of the absconding of Rev Khumalo who
was now employed
by another institution. The Church Council resolved that Rev
Khumalo be subjected to a disciplinary enquiry
by the SED. This
in my view shows at the very least that the Church Council was aware
of the cross transfer of Rev Khumalo
to the SED and approved of it.
I am of the view that the applicants would be hard pressed to succeed
in these circumstances
with an argument that Rev Khumalo’s
complaint is of such a nature as defined in the
Welkom
Village Management Board
case that he need not exhaust his internal remedies before
approaching this Court on review.
18.
This brings
me to the issue of non-joinder raised by the respondents. As I
understand the argument by Mr Eillert, the applicants
do not deny
that the ELCSA-SED, the receiving institution in the cross transfer
of Rev Khumalo, and the Church Council who approves
of such
transfers, have a direct and substantial interest in any order which
may be made in the review application and as such
are necessary
parties to the proceedings. The attitude adopted by Mr Eillert is
that an application for the joinder of these parties
could be made
later, after the issue of the joinder of Rev Khumalo has been
decided. To adopt this procedure is reminiscent
of the reasons
why the application for joinder in the
Kinekor
Films
matter referred to in paragraph 11 herein failed. It would
result in another application for joinder with the additional
unjustifiable expense and inconvenience for all the parties
concerned. The long and short of the matter is that Rev Khumalo
has failed to show that he has a
prima
facie
case or that he is serious in obtaining the relief sought in the
review application. I am hesitant to make a finding that
the
application to intervene and be joined as an applicant is frivolous,
but I must add that such a finding would not be totally
unsupported
by the facts of this matter.
19.
In my view
the application for Rev Khumalo to intervene and be joined as an
applicant must in all of the circumstances be dismissed.
There
is no reason why costs of this application should not follow the
event. Ms Erasmus has however requested that the applicants
should also be ordered to pay the costs of the proceedings in respect
of Part A of the Notice of Motion, which was withdrawn by
the
applicants without tendering costs. Mr Eillert could not make
any submissions in this regard. In the absence of
any reasons
why the respondents should not be entitled to its costs, the
applicants stand to bear the costs of the proceedings
related to Part
A of the Notice of Motion.
In
the result the following orders are made:
a)
The
application for the joinder of Rev Khumalo as an applicant is
dismissed with costs.
b)
The
applicants are ordered to pay the costs in respect of the proceedings
in Part A of the Notice of Motion.
________________________
CC
WILLIAMS
JUDGE
I
concur
__________________________
CJ
OLIVIER
ACTING
DEPUTY JUDGE PRESIDENT
For
Applicants: Adv A Eillert
Geoff
Smith Attorneys
For
Respondents: Adv S L Erasmus
Mzuzu
Attorneys